[OttoC]

In a matter that may have far-reaching consequences for baseball fans, especially the number crunchers, a fantasy league company in Missouri is asking a federal court to decide whether professional baseball statistics are historical facts to be used freely or, as MLB claims, property that may be sold.

Quote

CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license.

The company had been paying nine percent of their gross to the player's association to license the stats, but last year MLB bought the rights for $50 million and declined to renew the company's license.

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Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to "commercially exploit the identities and statistical profiles" of big league players.

Link: AP article via CNN

I wasn't sure where to put this.

[anaxamandr]

Good post OC, I just saw this on CNN as well. Putting intellectual property like this in front of the courts is a risky thing for MLB and all fantasy leagues. I would imagine (...conjecturing w/ no legal background) that a case like this would set a precendent for all sports stats, or at the very least those kept officially by leagues. (As an aside, does the MLB officially keep UZR as a stat? Or is that, theoretically, a proprietary stat kept by baseballprospectus.com or some such place? Also, MLB definitely does not keep PECOTA projections in any sort of official capacity, right?). On the one hand, MLB is risking the fees it makes on all of its stats that are, presumably, paid by most major sports sites and some fantasy leagues. Not sure how substantial this money, but 9% of revenue generated by fantasy leagues would be serious bank.
On the other hand, I am sure there are hundreds of sites (esp. fantasy sites) that use web crawlers to extract stats from sports sites for use on "personal" or "Private" fantasy leagues. And I bet many of these leagues award cash prizes. These people, both users and administrators of the sites could potentially, be liable to litigation for unlicensed use (I think) if the court rules in favor of the MLB. If there is a wave of litigation, all these sites could be shut down (voluntarily or not) by people (in the US of A) who fear legal reprisal from the MLB and other leagues limitless legal budget. I fear this will be a RIAA vs Napster deal all over again.
What I am truly concerned about tho is this: will the guy who runs the NCAA online web tourney I do have to shut his site down? And if so, would I be able to take legal action to recompense my already committed entry fee? These are the things I need to know.

[Philip Jeff Frye]

Another great example of how short-sighted baseball is in the way it thinks about its business. Roto is probably the best thing that has happened to baseball since games went on television in terms of increasing general interest in the sport. I'm a big Red Sox fan obviously, but until I started playing fantasy baseball, I almost ever watched a game on ESPN or TBS. Now if my pitcher's starting for the Braves, I about 1000% more interested than I used to be. The result is that I spend a lot more time watching non-Red Sox games on TV, and MLB didn't have to spend a dime to make it happen. You'd think they'd be happy about this.

But all the suits at MLB can think about is that somebody is charged me $10 bucks for their fantasy website service. That money is theirs, dammit, theirs!

[DieHard3]

I find it hard to believe that the record of an at bat that is broadcast into millions of private households is protected.

How is this different from a movie review? I pay my money to view the entertainment, and then write up a review of that performance. The theatre company has no claim to my write up. None.

This is nothing but a money grab by John Henry and his cabal of MLB ownership. They see the amount of money generated by fantasy leagues and want to monopolize that the same way they monopolized the internet and monopolize professional baseball in America.

[Rudy Pemberton]

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This is nothing but a money grab by John Henry and his cabal of MLB ownership.

Yep, this is all John Henry's fault. He doesn't care about winning either, from what I've heard.

This post has been edited by Rudy Pemberton: 16 January 2006 - 12:05 AM

[Comfortably Lomb]

I really have a hard time believing that if you watch the games and record the stats yourself then the numbers you record aren't your property afterward. Using numbers put out by MLB without compensating them is one thing but when you do the legwork yourself it just doesn't make sense for them to still be the property of all powerful MLB. The courts have surprised me in the past year though (cough*property seizure*cough) so maybe they'll upset me again.

-----------------------------------------------------------------------------------------------

Rudy Pemberton, on Jan 15 2006, 11:35 PM, said:

Yep, this is all John Henry's fault. He doesn't care about winning either, from what I've heard.
<{POST_SNAPBACK}>

No, it's not all John Henry's fault but he does have a voice in the matter and as a whole the owners are all about the money. Henry is willing to spend money to win but that doesn't mean he isn't also greedy. The guy made a fortune trading commodities and you don't think he doesn't care about the bottom line?

This post has been edited by Comfortably Lomb: 16 January 2006 - 12:16 AM

[OttoC]

Comfortably Lomb, on Jan 16 2006, 12:11 AM, said:

I really have a hard time believing that if you watch the games and record the stats yourself then the numbers you record aren't your property afterward.  Using numbers put out by MLB without compensating them is one thing but when you do the legwork yourself it just doesn't make sense for them to still be the property of all powerful MLB.  The courts have surprised me in the past year though (cough*property seizure*cough) so maybe they'll upset me again.
<{POST_SNAPBACK}>

The problem here is that I can't watch every game and record the stats. What good are partial stats, and if MLB wins, they probably wouls go after people who tried to share the results of their stat recording.

This decision will also affect minor league stats.

[Lyonking]

CDM is far and away one of the best pay roto sites around (and one of the first). Kudos to them for continuing to push this fight against MLB.

[Charley Weir]

Quote

I really have a hard time believing that if you watch the games and record the stats yourself then the numbers you record aren't your property afterward. Using numbers put out by MLB without compensating them is one thing but when you do the legwork yourself it just doesn't make sense for them to still be the property of all powerful MLB.

The actual facts are public domain. The compilations thereof are not. If people are willing to pool them, MLB has no case (IMO, of course). If MLB WANTS fans, they had better know when to say when; $45 for a box seat is enough - watching all those Viagra commercials is way more than enough.

Enough!

[Chemistry Schmemistry]

An interesting off-shoot:

The statistics are worthless without player names. So, by granting these services the ability to use the statistics, they are saying that the fact these players participated in NFL games means their participation itself is historic record.

Therefore, the "exclusive" license agreements, like EA Sports has with the NFL, are limited only to the player endorsements. Any sports gaming company can use player names without risk of retribution.

[Jim Gosger]

Charley Weir, on Jan 16 2006, 07:41 AM, said:

The actual facts are public domain. The compilations thereof are not.
<{POST_SNAPBACK}>

Interestingly, the official scorers for MLB in each city are mostly members of the press. Here in Boston it's Charles Scoggins of the Lawrence Eagle-Tribune. I'm guessing they get paid to do their work by the club, but they are also employed by a newspaper who publishes these statistics without a fee AFAIK.

Once a boxscore has been published in a newspaper, isn't it then in the public domain? Can MLB charge fantasy sites for something that is provided free to local newspapers or to ESPN.com?

[Vermonter At Large]

Jim Gosger, on Jan 16 2006, 09:33 AM, said:

Interestingly, the official scorers for MLB in each city are mostly members of the press.  Here in Boston it's Charles Scoggins of the Lawrence Eagle-Tribune.  I'm guessing they get paid to do their work by the club, but they are also employed by a newspaper who publishes these statistics without a fee AFAIK.

Once a boxscore has been published in a newspaper, isn't it then in the public domain?  Can MLB charge fantasy sites for something that is provided free to local newspapers or to ESPN.com?
<{POST_SNAPBACK}>

IIRC, back in the 1980's, wasn't USA Today the first principle source of that MLB stats data in downloadable form?

Is there a relationship between STATS Inc. and MLB? Are they contracted by MLB to compile MLB stats? If not, do they pay MLB for the rights to use the stats? They provide stats not only to fantasy providers, but also to most major media (such as ESPN, TSN, etc) users as well. Are they involved in this suit, and is not, why not?

What about sources of data, such as Retrosheet and BBR who garner their information (presumably) directly from newspapers. Do they share profits (if there are any - fairly modest if any) with MLB?

I really have to believe that raw stats have to be considered public domain. What about persons or organizations that invent analytic methodologies, such as James, Palmer and Thorn, or BP? Do they retain the rights to things like PECOTA, Win Shares, etc?

I understand this is just a greed move on behalf of both MLB and the stats providers, since the latter are making what must be a big pot of money on the fantasy service, but I think the implications reach beyond that particular rice bowl, since it theoretically could shut down things like Retrosheet, BBR, BBA, BP, Lahman etc that aren't making huge profits off these stats.

Am I reading too much into this?

[Steve Dillard]

Some 30 second copyright primers, taken from the Second Circuit's analysis of this type of issue (Motorola vs. NBA):

http://www.bitlaw.co...yright/nba.html

A copyright must be for literary work or some original work by an author. Taking the underlying facts of a game do not constitute copyrightable materials.

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Although the broadcasts are protected under copyright law, the district court correctly held that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts, not the expression or description of the game that constitutes the broadcast. The "fact/expression dichotomy" is a bedrock principle of copyright law that "limits severely the scope of protection in fact-based works." Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 350 (1991). "'No author may copyright facts or ideas. The copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality.'" Id. (quoting Harper & Row, Inc. v. Nation Enter., 471 U.S. 539, 547-48 (1985)).

We agree with the district court that the "[d]efendants provide purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast." 939 F. Supp. at 1094. Because the SportsTrax device and AOL site reproduce only factual information culled from the broadcasts and none of the copyrightable expression of the games, appellants did not infringe the copyright of the broadcasts.

Lastly, compilations of public information, such as phone books or the like cannot be copyrightable.

As to alleged "misappopriation" of the property, the Second Circuit seemed to conclude rather easily that the boxscores were not protectable (and that a reporting service was not "taking" the facts):

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However, there are critical elements missing in the NBA's attempt to assert a "hot-news" INS-type claim. As framed by the NBA, their claim compresses and confuses three different informational products. The first product is generating the information by playing the games; the second product is transmitting live, full descriptions of those games; and the third product is collecting and retransmitting strictly factual information about the games. The first and second products are the NBA's primary business: producing basketball games for live attendance and licensing copyrighted broadcasts of those games. The collection and retransmission of strictly factual material about the games is a different product: e.g., box-scores in newspapers, summaries of statistics on television sports news, and real-time facts to be transmitted to pagers. In our view, the NBA has failed to show any competitive effect whatsoever from SportsTrax on the first and second products and a lack of any free-riding by SportsTrax on the third.

This is the Second Circuit's analysis of the issue, and I suppose other circuits can reach a different result.

This post has been edited by Steve Dillard: 16 January 2006 - 09:29 AM

[Philip Jeff Frye]

I believe one issue they're arguing here is that the linking of a player's name with his stats represents using that player's "image" (I probably don't have the correct term there) to make money. I couldn't start selling Manny Ramirez jerseys without cutting the appropriate people in, so why should I be able to sell a game using him without paying? So its more than just making the stats available.

A real world result of this is that the fantasy websites that have licensed MLB's data don't list "Barry Bonds" as a player but rather "SF Outfielder" or something like that because Bonds somehow opted out of the players union's deal with MLB to make their players available for things like fantasy sports. So Bonds' data is available for use, but not his name.

[PedroKsBambino]

As I understand it the issue is indeed the right to publicity of the players. I read something on this a while back in an earlier phase of the case, so it's possible I've gotten details confused over time.

IIRC, MLB Advanced Media bought from the MLBPA last spring the right to use the players' names in fantasy games, essentially. It's that which they are trying to license to CDM and others at a very high fee, and that (more than the actual factual info about outs and hits) is where the issue really will be decided.

Based on the Motorola/NBA case the underlying record of events (i.e. what occurred, hits, runs, etc) is very tough to protect. But charging a fee for the fantasy game (or profitinig from a free game via ads) and then using the players names conceivably is protected, because the right to publicity is broader than you might imagine.

I haven't done any research, but my gut here is that MLB is not all that likely to succeed. Perhaps there's an IP lawyer here who has a better take on the issues.

[AZBlue]

The Associated Press story was incorrectly worded. the lead said:

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ST. LOUIS, Missouri (AP) -- A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that can be sold.

What it should say is either:

ST. LOUIS, Missouri (AP) -- A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that must be purchased from Major League Baseball.

or "...can be sold to third parties by sports fantasy leagues only if licensed to do so by Major League Baseball."

[TonyJalaPena]

MLB has to be looking at the ridiculous amount of revenue generated by the NFL and wondering how come they can't do the same. Fantasy products are so huge to them that taking a bigger chunk out of the pockets of the fantasy sites seems like a good business move.

Please don't tell me the PR hit will hurt them - they've already proven they don't care about that.

[MikeGreenwell]

In a world that features the National Enquirer, The Star, etc. frequently publishing unflattering stories and unauthorized photos of non-sports entertainers, casino wagering on all kinds of sports and non-sports events, and all kinds of online non-sports fantasy sites, I don't understand how Barry Bonds or MLB can require a fantasy sports company to license the right to use a public figure's name and/or stats.

I'm not a lawyer, so maybe someone else can better explain the differences on this. Why can a casino take bets on whether Barry Bonds will break the MLB home run record but others have to refer to him as "SF Outfielder"? Why can a online game site like hsx.com create "moviestocks" and "starbonds" that use the actual names of celebrities and movies and Yahoo operate fantasy games for TV shows like "Survivor" but things are different for baseball? Could JibJab use Bonds in a video and claim fair use under parody copyright laws? Does it matter what they show him doing?

This post has been edited by MikeGreenwell: 16 January 2006 - 12:12 PM

[Chemistry Schmemistry]

The Lanham Act applies to commercial use of marks.

It prohibits use of a name only if there's confusion as to whether the person endorsed the product.

As long as CDM provides a disclaimer that no player or league endorses CDM, this case is hopefully a slam dunk. And video game makers can go back to using player names without worry of being sued.

So far, no one has stood up to the professional leagues.

[Monster Dick Radatz]

You are correct, PKB, that the issue is who contols the right of publicity. As demonstrated by the Motorola case discussed above, the statistics themselves are clearly within the public domain. What is less clear, however, is who controls the ability to capitalize on the publicity generated by the athletic achievement. While the athlete's name and visage clearly belong to the athelete (dont' try selling home-brewed Tom Brady Beer), as the line between entertainment and news is blurred, it is less clear whether the athelete's name and box score is simply news or something to be bought and sold.

For those who are interested, here is a copy of the Complaint and this link is pretty informative write-up from Legal Affairs:

Quote

If the court agrees with MLB that fantasy sports leagues and the like are misappropriating the players' names and celebrity, it will cast doubt on the legality of other matters we thought were long settled. Could Las Vegas still trade on Tiger Woods's name by offering odds and taking bets on whether he will win the Masters? Presumably not, as this would be unlicensed poaching of Woods's celebrity. Take Trivial Pursuit, a game that sells questions about famous actors and authors without compensating them: Why wouldn't that suddenly be illegal? Cut through the rhetoric, and what is at issue here is the extent to which the rights of stardom are shared—between the star who earns it and the public that bestows it.

.